Medical Privacy Rights and Medical Marijuana

 Posted on September 11, 2014 in Criminal Defense

While the topic of medical marijuana in Illinois this year is a popular issue, those who qualify as patients and those who care for them are increasingly being placed in a very strange and often no-win situation in the gaps between federal and state law.

Lack of Privacy Rights

One of the most problematic issues, from a federal perspective on the topic, is precisely the area where patients’ rights to privacy clash with concerns over regulation and law enforcement.    Where these protections fail, Illinois medical users can easily find themselves facing criminal prosecution for (at minimum) possession, if not use.

Most of the lack of protections for patients on this topic involve a failure of federal civil rights protections, particularly in situations that revolve around medical privacy and access. That said, the so-called “medical exception” to marijuana on the federal level (at the Supreme Court in the last decade) may change sooner rather than later by either case-setting precedent or federal legislative mandate, particularly after the elections in the fall. It is widely expected that changing state rules on the issue will begin to impact federal legislators more directly as at least three more states (Alaska, Oregon and Florida) are expected to vote in the fall for expanded medical and recreational use.

While there is no Constitutional right to privacy, there are implicit rights, including due process, which are particularly important to establish in the area of medicinal use. Per both the Privacy Act of 1974, as well as HIPAA (the Health Insurance and Portability Accountability Act), medical records (including marijuana use) are expressly prohibited from casual access by law enforcement (specifically, a warrant is required). To the extent that most state medical marijuana programs are being established with a presumption of guilt (patients are subject to background checks automatically as a condition of acceptance), this is an issue that no doubt will be mired in legal wrangling for years to come, particularly in states like California where the state Unruh Act protecting people with disabilities actually is stronger than the federal Americans with Disabilities Act (ADA).

New Patients in Illinois Should Take Note

Potential patients in Illinois, as the state rolls out its program, should also be aware that there are no instant protections in either federal or state law, particularly under the idea of a “medical exception.” Marijuana remains illegal as a classified Schedule I substance under federal law, and while discrepancies in state law, even in Illinois, are creating a unique and limited loophole, be aware that on all levels, the liabilities for use are also high.

If facing the issue of marijuana use as a new user, particularly if you have a previous arrest or charges on your criminal record, it is critical that you contact an experienced Illinois criminal defense attorney. At the Law Offices of Hal M. Garfinkel LLC, Chicago Criminal Defense Attorney, we are here to help.